CITATION: L.G. v. Pityk, 2017 ONSC 6863
COURT FILE NO.: 17-72741
DATE: 2017/11/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
L.G. Appellant
– and –
Dr. Mykhaylo Pityk
Respondent
Michael Davies, Counsel for the Appellant
Marie-Pierre T. Pilon, Counsel for the Respondent
HEARD at Ottawa: October 13, 2017
reasons for decision
ryan bell j.
Overview
[1] L.G. suffers from a mental disorder. On April 7, 2017, Dr. Pityk placed L.G. on a Community Treatment Order. L.G. challenged the CTO before the Consent and Capacity Board. The Board found that the criteria set out in the Mental Health Act for issuing the CTO had been met at the time of the hearing and upheld the CTO (R.S.O. 1990, c. M.7).
[2] L.G. asks this court to set aside the Board’s decision and quash the CTO on the basis that:
(i) Dr. Pityk did not consult with the health practitioners proposed to be named in the community treatment plan as required by subsection 33.1(4)(d) of the Act; and
(ii) L.G.’s substitute decision-maker had not provided the undertaking required by subsection 33.1(6)(d) of the Act at the time the CTO was issued.
[3] In my view, the Board’s finding that Dr. Pityk consulted with the health practitioners named in the community treatment plan is reasonable.
[4] However, in relation to the undertaking of L.G.’s substitute decision-maker, the Board inferred only that the undertaking occurred “close in time” to the issuing physician’s signature. The evidence before the Board was that the undertaking was provided a few days after Dr. Pityk’s signature. In my view, the Board erred in law in failing to address the statutory requirement that the undertaking be in place at the time the CTO is issued.
[5] On consent of the parties, I have ordered an amendment to the title of the proceeding to remove reference to the appellant’s proper name, substituting her initials, in the interest of protecting her privacy.
Background Facts
[6] L.G. has been diagnosed as suffering from schizophrenia or a delusional disorder. Since 2010, she has been admitted to psychiatric facilities in Canada and Europe. L.G. does not accept that she has a mental illness. She has been started on treatment in the past; however, she has stopped taking the prescribed medication once she has been discharged from the hospital.
[7] L.G. was admitted to hospital in Quebec in February 2017, following which she was admitted to Montfort Hospital on March 7, 2017. From March 7 to April 18, 2017, L.G. remained at Montfort Hospital, with the exception of three days when she left the hospital, against medical advice, and went to Toronto.
[8] While at Montfort Hospital, L.G. manifested several intense paranoid delusions. Over the course of her admission and through treatment by medication, her ability to interact with others improved and her fear of other people subsided. She developed a therapeutic alliance with Dr. Pityk.
[9] Dr. Pityk developed a plan to give L.G. antipsychotic medication by injection and then to place her on a CTO requiring her to see medical personnel every three weeks for injections. Dr. Pityk’s view was that without the injections and a CTO to enforce the medication, L.G. would deteriorate and would require another admission to hospital. The two health practitioners given primary responsibility under the community treatment plan for L.G. are Dr. Tempier and Susan Reid, RN.
[10] L.G.’s mother is her substitute decision-maker. The substitute decision-maker signed the CTO but her signature is not dated. Dr. Pityk was not present when the substitute decision-maker signed the CTO. Dr. Pityk signed the community treatment plan on April 5, 2017. He signed the CTO on April 7, 2017.
Standard of Review
[11] Reasonableness is the appropriate standard of review for a decision of the Board where the question is one of fact or mixed fact and law (Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 53). The standard of reasonableness “involves respectful attention, though not submission” to the Board’s reasons, and an unreasonable decision is one that is not supported by reasons that can stand up to a somewhat probing examination (Starson v. Swayze, 2003 SCC 32, at para. 88, citing Ryan v. Law Society (New Brunswick), 2003 SCC 20, at para. 49 and Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 56). A finding by the Board that the subsection 33.1(4) criteria were met is a question of mixed fact and law, reviewed for reasonableness (S.S. v. Kantor, 2017 ONCA 828, at para. 39).
[12] While legal issues generally attract a standard of correctness, some legal issues attract the more deferential standard of reasonableness (Dunsmuir, at para. 51). Deference will usually result where a board or tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity. On the other hand, a question of law that is of central importance to the legal system and outside the specialized area of expertise of the board or tribunal will attract a correctness standard (Dunsmuir, at paras. 54-55).
[13] In Starson, the Supreme Court of Canada established a standard of correctness for the Board’s interpretation of the legal standard for capacity; Starson has also been read as establishing a standard of correctness for questions of law generally (Kantor, at para. 20). In Kantor, the Court of Appeal for Ontario observed that the Supreme Court of Canada’s approach to error of law review has evolved considerably since Starson (which predated Dunsmuir), citing Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, at para. 22; Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at para. 46; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, at para. 55; and McLean v. British Columbia (Securities Commission), 2013 SCC 67, at para. 21). The Court of Appeal in Kantor applied the correctness standard to the Board’s interpretation of subsection 33.1(4); however, the outcome of the appeal did not hinge on the standard of review as the Court of Appeal concluded that the Board’s decision was both reasonable and correct.
Legislative Framework
[14] The purpose of a CTO is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. One purpose is to provide such a plan for a person who experiences the following pattern: admission to a psychiatric facility; stabilization of condition; release from the facility; cessation of treatment or care and supervision; change in condition; and readmission to a psychiatric facility (Mental Health Act, s. 33.1(3)). In other words, the legislative objective is to provide a community-based treatment plan for “revolving door” patients who fall within the prescribed criteria (Thompson and Empowerment Council v. Ontario, 2013 ONSC 5392, at para. 83, aff’d 2016 ONCA 676).
[15] The Act outlines strict parameters for the issuance of CTOs and contains significant procedural and substantive protections. The community treatment plan which underlies the CTO is individualized and tailored to the person’s circumstances (Thompson, at para. 95). A CTO may only be issued where the person has been on a CTO previously during the last three years, or has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during the previous three years (Mental Health Act, s. 33.1(4)(a)). The onus is on the physician making the order to satisfy the Board that the statutory prerequisites have been met (J.S. v. Legault, 2016 ONSC 3098, at para. 32).
[16] A physician may issue or renew a CTO under subsection 33.1(1) of the Act if the criteria set out in subsection 33.1(4) are met. The criteria include:
(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan of the person;
(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;
[17] The content of a CTO is prescribed in subsection 33.1(6) of the Act. The required contents include an undertaking by the person to comply with his or her obligations as set out in subsection 33.1(9) or an undertaking by the person’s substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations (Mental Health Act, s. 33.1(6)(d)).
[18] The issues in this case relate to the consultation by the physician with the health practitioners proposed to be named in the community treatment plan (subsection 33.1(4)(d)) and the undertaking by the substitute decision-maker referred to in subsection 33.1(6)(d) of the Act.
The Board’s Finding that Consultation with the Health Practitioners Occurred
[19] L.G.’s position on this issue is threefold:
(i) The Board erred in law in its interpretation of the phrase “consulted with” in subsection 33.1(4)(d) of the Act;
(ii) The Board unreasonably concluded that Dr. Pityk consulted with the other health care practitioners prior to the development of the community treatment plan; and
(iii) The Board erred in law in failing to address the requirement in subsection 33.5(3) of the Act that the health practitioners indicate their agreement “in the [community treatment] plan.”
[20] The Board found that Dr. Pityk consulted Dr. Tempier and Ms. Reid, the health practitioners proposed to be named in the community treatment plan for L.G. Dr. Pityk testified that he had some discussion with Ms. Reid; Dr. Pityk’s evidence was that he and Ms. Reid usually discuss the procedure about all of the patients he refers to her. Dr. Pityk testified that a formal request was sent to Dr. Tempier and that he believed that L.G. was seen by Dr. Tempier. There was a sign off when the care of a patient was transferred to another psychiatrist and Dr. Pityk presumed this had taken place; he was unaware of any difficulties transferring L.G. to the care of the outpatient department. The Board found that Dr. Pityk, Dr. Tempier and Ms. Reid were colleagues at the Montfort Hospital and likely had working relationships with regular contact through various means. In these circumstances, the Board found that if the consultation took place by way of written referral, which was subsequently accepted by the service provider, the consultation had taken place.
[21] The Board’s conclusion on the consultation issue expressly recognized the necessity of discussion with other care providers (and the substitute decision-maker) prior to entering into the community treatment plan. The Board stated that the consultation and agreement was, to a large extent, implied by the working relationships among Dr. Pityk, Dr. Tempier and Ms. Reid as colleagues at the Montfort Hospital.
[22] In my view, the deferential standard of reasonableness applies to the Board’s interpretation of “consulted with” in subsection 33.1(4)(d) of the Act. Subsection 33.1(4) focuses on the role and responsibilities of a physician in issuing a CTO. The physician is required to consult with the persons who are proposed to be named in the community treatment plan. The rationale for the consultation is clear: those persons must be aware of their obligations under the plan and must be prepared to accept and fulfill those obligations. As the Board stated in CB (Re), the imposition on a physician of a requirement to consult is intended to ensure that a meaningful process is followed when a CTO is issued; at the same time, this does not mean that the consultative process should be interpreted so narrowly that the purpose of the CTO is frustrated and the liberty of the person who would otherwise be subject to the order is further jeopardized by the prospect of another involuntary detention (2016 CanLII 22549 (ON CCB)). In L.G.’s case, the Board interpreted subsection 33.1(4)(d) of the Act having regard to both the purpose of the legislation and the circumstances, including the working relationships among Dr. Pityk, Dr. Tempier and Ms. Reid. In my view, the Board’s interpretation of subsection 33.1(4)(d) is reasonable.
[23] The standard of reasonableness also applies to the Board’s finding that Dr. Pityk consulted with Dr. Tempier and Ms. Reid. In its reasons, the Board referred to Dr. Pityk’s working relationship at the Montfort Hospital with Dr. Tempier and Ms. Reid, Dr. Pityk’s discussion with Ms. Reid and his referral to Dr. Tempier. The Board referred to the necessity for the consultation to take place before the community treatment plan was entered into to ensure that the individuals expected to carry out the terms of the plan or support its enforcement have been consulted and have agreed to be involved. The Board’s finding that Dr. Pityk consulted with Dr. Tempier and Ms. Reid is supported by the evidence and the Board’s reasons. Its finding that consultation with the health practitioners occurred is reasonable.
[24] As for the timing of the consultations with Dr. Tempier and Ms. Reid, the Board’s reasons disclose that the Board members were aware of the need for the consultations and the agreement to take place prior to the community treatment plan being entered into: “[t]hese points related to the necessity of discussion with other care providers and the SDM [substitute decision-maker] prior to entering into the CTP.” The Board was satisfied that the intent of the legislation was respected and concluded that “[t]his consultation” was to a large extent implied by the working relationships. In my view, read in context, the consultation referred to can only be Dr. Pityk’s consultations with Dr. Tempier and Ms. Reid, which the Board had inferred occurred prior to the community treatment plan being entered into. I find no error by the Board in this regard.
[25] For the same reason, I find no error by the Board with respect to subsection 33.5(3) of the Act. Subsection 33.5(3) requires that a person who agrees to provide treatment or care and supervision under a community treatment plan “shall indicate his or her agreement in the plan.” L.G.’s position is that the Board erred in law in not addressing the issue of agreement in the community treatment plan. I disagree. The Board’s reasons expressly refer to the need for agreement from the individuals expected to carry out the terms of the plan, before the plan is entered into.
The Substitute Decision-Maker’s Undertaking
[26] L.G.’s position is that the CTO ought to have been quashed by the Board on the basis that when Dr. Pityk issued the CTO, the substitute decision-maker’s signed undertaking was not yet in place. Dr. Pityk’s position is that it was reasonable for the Board to infer that the signature of the substitute decision-maker “occurred close in time to the Issuing Psychiatrist’s signature” and to conclude that the requirement in subsection 33.1(6)(d) was met.
[27] Under the Act, the physician issues the CTO (Mental Health Act, s. 33.1(1)). The issuance of the CTO occurs when the physician signs the prescribed form – Form 45 Community Treatment Order. This is evident from Part 3 of the prescribed form. Part 3 provides for the duration of the CTO; the time the CTO is in force includes the day upon which it is signed. It follows that all of the necessary prerequisites must be in place when the CTO is signed by the physician and issued.
[28] The content of the CTO is mandated by subsection 33.1(6) of the Act. That content includes the undertaking by the person or the person’s substitute decision-maker described in paragraph (d) of subsection 33.1(6). I do not accept the submission on behalf of Dr. Pityk that because the undertaking is found in subsection 33.1(6) of the Act and not among the criteria listed in subsection 33.1(4), non-compliance would not invalidate the CTO. The words of the Act, and in particular, the provisions dealing with CTOs and community treatment plans, must be read in their entire context, harmoniously with the scheme and purpose of the Act and the intention of the Legislature. The contents of the CTO, as specified in subsection 33.1(6), are no less important to the legislative purpose than are the criteria set out in subsection 33.1(4).
[29] Part 2 of the prescribed form is the undertaking to be completed by the person or the person’s substitute decision-maker. By signing the CTO, the person or their substitute decision-maker signifies their consent to the community treatment plan and their consent to and assumption of the undertakings stated in the plan.
[30] Dr. Pityk testified that L.G.’s substitute decision-maker signed the CTO a few days after he signed it. In confirming the CTO, the Board distinguished KK (Re), 2015 CanLII 30959 (ON CCB). In KK (Re), approximately four days elapsed between the signature of the physician and that of the substitute decision-maker. Although there was no direct evidence on exactly when L.G.’s substitute decision-maker signed the CTO, the Board found that the CTO coordinator oversaw the substitute decision-maker ‘s signature and had a process in place to ensure that this occurred close in time to Dr. Pityk’s signature.
[31] While the Board’s finding that the substitute decision-maker signed the CTO “close in time” to Dr. Pityk is entitled to deference, that finding does not address the requirement that the undertaking must be in place before the physician signs and issues the CTO. I do not accept the argument advanced on behalf of Dr. Pityk that the evidence before the Board supports a finding that the substitute decision-maker and Dr. Pityk both signed the CTO by April 7, 2017. The Board did not make such a finding; in any event, such a finding would, in my view, have been unreasonable as the evidence before the Board was unequivocal – the signature of the substitute decision-maker was secured a few days after Dr. Pityk signed the CTO. I also note that the onus rested on Dr. Pityk to satisfy the Board that the prerequisites to the CTO’s issuance had been met.
[32] In KK (Re), the Board considered Form 45. The Board observed that Form 45 provides, by way of Notes, the actions that must be taken by the issuing physician immediately after the CTO is signed: (i) the order and the community treatment plan must be provided to the person, the substitute decision-maker, the officer in charge of a psychiatric facility, and any health practitioners or persons named in the community treatment plan; and (ii) notice must be given to the person that they are entitled to a hearing before the Board. As the Board stated in KK (Re), without the signed undertaking of the substitute decision-maker, the actions required of the physician could not occur immediately.
[33] In my view, when the undertaking must be given is a question of law for which no deference is owed to the Board’s decision – “a reviewing court should not defer to the Board’s findings if the Board has misunderstood the statutory test” (Gajewski v. Wilkie, 2014 ONCA 897, at para. 33). On a plain reading of subsections 33.1(1) and 33.1(6)(d) and the prescribed CTO form, it is clear that the undertaking of the substitute decision-maker must be given in writing before the CTO is issued, that is, when the physician signs the CTO. Otherwise, the CTO is incomplete and the physician is unable to comply immediately with the steps mandated on the prescribed form. The substitute decision-maker’s signed undertaking was not in place at the time the CTO was issued; accordingly the preconditions were not met and the Board’s decision upholding the CTO must be set aside.
Disposition
[34] For these reasons, the appeal is allowed. The decision of the Consent and Capacity Board dated May 15, 2017 is set aside and the CTO relating to L.G. dated April 7, 2017 is quashed.
Madam Justice R. Ryan Bell
Date: November 17, 2017
CITATION: L.G. v. Pityk, 2017 ONSC 6863
COURT FILE NO.: 17-72741
DATE: 2017/11/17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
L.G.
Appellant
– and –
Dr. Mykhaylo Pityk
Respondent
reasons for decision
RYAN BELL J.
Released: November 17, 2017